Peter Ellis (childcare worker)

Ellis loved animals and kept rabbits, cats and dogs as pets.[8] His difficulties began when a mother, who was a social worker and a self-claimed victim of sexual abuse, bought a black puppy from him. Ellis showed her four year old son who attended the Creche how to distinguish the puppy's gender.[9]

A few months later, in November 1991, the mother alleged that her son said he "didn't like Peter's black penis". His mother, who had written a handbook on sexual abuse,[10] concluded her son had been sexually interfered with.[11] She made a complaint to the creche in November 1991. After a brief investigation, the police decided there was no case to answer,[12] but Ellis was suspended from work. The mother then withdrew her son from the creche and enrolled him into a different Christchurch day care centre. Shortly thereafter, she alleged a male worker at this second creche had also abused her son. The police investigated and again found no evidence to support the allegation.[13]

Ellis was extremely popular with children and parents at the creche.[13] In the week following his suspension, inspectors from the New Zealand Education Review Office spent a full week at the Civic Creche observing its daily operation. The office subsequently issued a highly favourable report, stating that "The staff ensure personal needs are met with warmth, care and consideration. The children appear happy, inquisitive and sociable" and that "they [the children] have high self-esteem".[14][15]

Even though police concluded no abuse had occurred, some parents started asking their children about what went on at the creche and then shared these stories with other parents. The Department of Social Welfare was called in to conduct formal interviews with many of these children. A social welfare psychologist, Sue Sidey, initially revealed that there were six children for whom she felt there were grounds for concern, although the children made no disclosures of any indecent touching by a creche staff member. More parents became concerned that something must have happened. As the social welfare interviews continued, claims about bizarre sexual abuse incidents began to surface.[9] A meeting was held at the creche attended by staff members, a group of concerned parents and representatives from the Social Welfare Department. In response, the police reopened their investigation.[14]

Altogether, at least 127 children were interviewed. Some detectives believed that up to 80 had been abused.[13]

In addition to interviews conducted by Sue Sidey, the Christchurch City Council, which owned the creche, requested that psychologist and sex therapist Rosemary Smart review the management practices at the creche. Even though Smart's report was completed nearly 12 months before Ellis' trial, she seems to have assumed he was guilty;[13] although the word "alleged" crops up occasionally in her report, severely incriminating circumstantial evidence is presented as factual.[16]

Smart suggested that female staff may have been involved with abuse at the Civic Creche and her report helped convince investigating officers of the women's guilt. She quoted research by the New Hampshire sociologist David Finkelhor, whose 1987 book, Nursery Crimes, became the source for American believers in ritual abuse occurring in creches.[17] Finkelhor's work has since been discredited.[13]

Smart's report was completed in July 1992 and a copy was given to police. Detectives said her report was central to their decision to investigate four of Ellis's female colleagues at the creche. Their houses were searched for everything from pornography to babies bodies. Nothing was found.[13] Ellis' mother was suspected of being involved and accused of administering drugs to the children.[8]

The four female staff members were arrested on 1 October 1992 amid considerable televised publicity. At depositions they faced 15 charges that included sexual violation, indecent assault and one charge of performing an indecent act (having sex with Ellis) in a public place. The charges were subsequently dropped when Judge Williamson concluded the publicity meant their chances of a fair trial would be prejudiced by their association with Ellis.[13] Although the charges were dropped, their careers were ruined.[9]

Ellis was accused, among other things, of "sodomising children, forcing them to eat his faeces, urinating on them, suspending them in cages, taking them on terrifying trips of abuse through tunnels, ceilings and trapdoors". Other allegations included children being forced into a steaming hot oven or buried in coffins; one boy claimed he had his belly-button removed with pliers.[18] Allegations which emerged later as the interviews progressed included "Asian men dressed as cowboys, Masonic lodges, cemeteries, the Park Royal Hotel and private houses far from the creche ... (and) the notorious 'circle incident' where Ellis and his co-workers supposedly took a group of children to 404 Hereford St on the other side of town and made them stand naked and kick each other while the adults danced around them ... Alleged by one parent, was the sacrifice of a boy called Andrew." No child was actually reported missing by anyone involved.[13]

The police arrested Ellis on 30 March 1992, charging him with the first of what would eventually be 45 counts of sexually abusing 20 different children at the creche. By the time the case went to trial, the Crown had reduced the number of charges to 28, involving 13 complainants.[9] Some charges were dropped because the crown prosecutor, Brent Stanaway, did not want to put the more bizarre claims made by some of the children before a conservative Christchurch jury.[13]

In June 1993, Ellis was convicted of 16 counts of sexual offences involving seven children. The charges on which he was found guilty were that he had urinated on two children, made one masturbate him, put his penis in the mouths of three of them, engaged in indecent touching of three, and put his penis or an unknown associate's penis against the vagina or anus of three.[13] The following year he was acquitted of three charges involving the oldest complainant, who retracted her allegations and admitted her original statement was what her mother told her to say.[24]

Corrections officers who sat through the trial with Ellis did not think he was guilty and let that be known at Paparua prison. As a result, Ellis was not subject to the kind of beatings that perpetrators of childhood sexual abuse often suffer when sent to prison.[13][25]

In the years preceding the first allegation of abuse against Ellis, there had been a number of high profile child abuse cases in Christchurch involving "highly suspect interviews of children", "mistaken mass diagnosis of children" and other "highly questionable claims". The case has also been linked with the day-care sex-abuse hysteria, a moral panic that originated out of California in 1982 and that existed throughout the 1980s.[13] It has also been cited as a major cause in the decline in the number of male teachers in New Zealand schools.[3]

From September 1991 (two months before the first allegation against Ellis), there was "continuous publicity of sexual abuse and ritual abuse of children in the local press or in national media." On 4 September 1991, a Wellington sex abuse counsellor, Anne-Marie Stapp, told the Christchurch daily, The Press, that "New Zealand was fast approaching the level of ritual abuse awareness found in the United States." North and South Magazine reported that it was common knowledge around town that "various Christchurch police officers were hunting for a near mythical pornography-paedophile ring alleged to involve judges, Freemasons and prominent businessmen, though it was never found." On 3 November 1991 the Sunday News quoted the police as saying that "Satanism was rampant in New Zealand and linked to child pornography."[13]

Seventeen days later, a Christchurch mother rang Gaye Davidson, the supervisor at the Civic Creche to make the first complaint about Peter Ellis.[13] When making his appeal to the Supreme Court announced in July 2019, Ellis' former lawyer, Nigel Hampton QC, said he wants the Supreme Court to take the moral panic of the '90s into account in its decision-making.[27]

At least 118 children were interviewed as part of the second investigation into allegations of sexual abuse. Social Welfare psychologist, Sue Sidey, conducted most of the evidential child interviews used at the trial, although she had no formal qualifications in child psychology[28] In December 1991, Sidey conducted a number of interviews with children which failed to turn up any statements consistent with abuse.[29] Nevertheless, that month, she made a statement that “Peter Ellis is not a suitable person for a child centre” - before any formal allegations of abuse came to light.[30]

However, as more parents became concerned, some children were subsequently interviewed up to six times and began making bizarre allegations. The children's stories "were hardly ever challenged, no matter how fanciful their answers. If the answers were inconsistent or incoherent, then they would be asked again in more elaborate form until an acceptable answer was elicited."[31] Specific questions were employed to elicit allegations that children had apparently made to their parents, contrary to best practice guidelines.[32] The interviewers generally did not check with the children to find out whether their parents had said things to them about Peter Ellis or about the creche to eliminate the possibility of parental contamination. One mother even admitted in court that she encouraged her son to come up with new information by cuddling him, praising him and "telling him how brave he was after he revealed more and more details of his abuse".[33]

Michael Lamb, a leading authority on the interviewing of child abuse victims, was asked to review the interviewing process the children endured. In addition to the problems caused by multiple interviews, he noted that there were substantial delays between the alleged events and the formal interviews which were conducted up to 18 months later. Lamb wrote that during this time, the children were exposed to conversations with their parents, social workers and other children and "were likely to have adopted recently acquired information about the events in question."[34]

Stephen J. Ceci, a psychologist at of Cornell University and an expert in children's suggestibility and children's courtroom testimony, also studied transcripts of many of the children's evidential interviews. In July 1995 he said the interviews "were not conducted in accordance with currently understood interviewing principles."[35] According to Ceci, it is impossible to distinguish between accurate and inaccurate allegations when children are suggestively and repeatedly interviewed over a long period.

A number of people who were involved in the case believed Ellis was convicted because he was homosexual and was the only male worker at the creche.[36][37] At the trial, he was portrayed as sexually deviant and perverted, which was somehow consistent with the makeup of a child molester.[38]

One parent, Malcolm Cox, who had three children at the creche suggested that some parents may have been motivated to make claims that their child had been sexually abused because ACC automatically awarded $10,000 to anyone claiming to have been abused. He said that he and his wife were visited by a council social worker with ACC claim forms and told "we had to get in quick to claim the money because lump sums were being abolished".[13]

In the end, the Accident Compensation Corporation, ACC, paid more than $500,000 to about 40 parents of Civic Creche children. Generally parents received a standard $10,000, "but in cases where Ellis faced multiple charges relating to a single child, some parents claimed for each alleged incident of abuse" (McLoughlin, 1996). One child's parents allegedly claimed five payments, while another claimed four. According to North and South Magazine, "ACC didn't require a conviction before paying out. It paid up without so much as charges being laid in respect of some allegations. The police even wrote letters to ACC supporting compensation claims."[13]

A number of irregularities in the trial were publicised in a TV3 20/20 television programme which aired on 16 November 1997. The programme alleged that the jury foreman had been the celebrant at the wedding of the Crown Prosecutor Brent Stanaway 15 years earlier. It was also alleged that a female juror had had a sexual relationship with a co-worker of the mother of one of the children involved. The programme also put forward statements that most of the children who made allegations of sexual abuse withdrew their accusations at various times during proceedings but that social workers conducting the interviews treated this as a symptom of ‘denial’.[39]

The 20/20 programme also claimed the main investigating detective, Colin Eade, had a history of mental health problems. Eade told interviewer Melanie Reid he was "burnt out" before the case started and ‘beyond repair’ by the time it was over. He left the police force in 1994 suffering from posttraumatic stress disorder.[40] In an interview with Sean Plunkett on Radio New Zealand’s Morning Report on 20 November 1997, Eade admitted that after the trial he had sexual relationships with two of the mothers involved in the case and that he had propositioned another mother during the course of the investigation when he was drunk.[41]

New Zealand First MP Rana Waitai, who was a former police commander with 31 years’ experience, said "If half of what was on the (20/20) programme is true, Peter Ellis must immediately be released and hugely compensated for the devastation that has been done to his life."[39]

The case entered the Court of Appeal in July 1994 led by Graham Panckhurst QC. A key aspect of the appeal was that the seven children, whose evidence the jury accepted, had named 21 other victims – either as observers or participants. None of those 21 children confirmed any of the allegations.[9]

On the fourth day of the hearing (28 July), the oldest child on whose testimony Ellis was convicted, and probably the most credible of the child witnesses,[9] told her parents that her story was not true, that she had said only what she thought her parents and the interviewer wanted to hear. The Court of Appeal considered that it was not uncommon for child complainants to withdraw their allegations. The appellate judges believed the retraction may have been a case of denial on the part of the child and was grounds to overturn only those convictions relating to that child.[42] The child has continued to maintain that she fabricated her allegations.

In November 1998, Ellis presented a second petition to the Governor General seeking a Royal Commission on Inquiry into his case, and either a free pardon or for the whole case to be referred back to the Court of Appeal. The Secretary for Justice sought advice from Sir Thomas Thorp on the second petition. His advice concluded that the terms of reference should be expanded. In 1999 the Ellis case was referred to the Court of Appeal for a second time.[5] Judith Ablett-Kerr, QC, appeared as counsel for Ellis, and Simon France for the Crown. Ablett-Kerr argued emphatically that the children's evidence had been contaminated by parental questioning and presented updated opinions on the dangers of multiple interviews, using anatomically correct dolls and suggestive questioning.[9]

Barry Parsonson, former head of the New Zealand Psychologists Board, was asked to write a report into the process used to interview the children prior to Ellis's second Court of Appeal hearings. Parsonson concluded that "given the conditions prevailing (at the time), the level of parental contamination, and the extremely suggestive interviewing procedures, the probability of the proportion of fact outweighing the proportion of fiction must be very, very small indeed."[43] The Crown presented the expert opinion of Constance Dalenberg. The court concluded that they were not persuaded that a miscarriage of justice had occurred but suggested a Royal Commission of Inquiry could better examine some of the issues raised. Ellis immediately presented a third petition to the Governor General.

In 1999, a retired High Court judge, Sir Thomas Thorp, was commissioned by the Ministry of Justice to examine a petition for the royal prerogative of mercy lodged by Ellis's counsel, Judith Ablett-Kerr QC. She commissioned and supplied reports by experts that were based on selective information, for Thorp to consider. Despite the limitations of the reports, Thorp considered they raised serious concerns that should be investigated further.[44] He wrote that the interview transcripts revealed that on more than one occasion, one child claimed to have seen serious abuse committed against another child, but the second child denied anything happened. Thorp said there was no evidence that the interviewers or the police or did any cross checking before presenting abuse allegations to the jury.[45] He was also concerned that the more bizarre allegations made by children were not put before the jury, arguing that "the jury had to see that the children were capable of outrageous and fanciful allegation".[46]

Thorp stated that the central concerns were "the claims of defective interviewing techniques ... the risk of contamination of the childrens' evidence... (and) the exclusion of evidence necessary to a proper assessment of the childrens' reliability". He added that if the opinions of Barry Parsonson, Stephen Ceci and Justice Wood were found to have substantial support, it would "be difficult to argue against the existence of a serious doubt about the safety of the Petitioner's convictions."[47]

In March 2000, then Minister of Justice Phil Goff established a ministerial inquiry into the conduct of the interviews, headed by Sir Thomas Eichelbaum. This was undertaken in response to Justice Thorp's report[44] and ongoing concerns over the reliability of the children's evidence. In a later submission, Ministry officials stated that the Ministerial Inquiry was "intended to address specific areas of concern that might not have been seen to have been fully resolved by the Court of Appeal."

The terms of reference required Eichelbaum to examine the relevant documents and seek written submissions from those who were involved in the case but not to interview anyone.[48] He was also required to appoint two international experts to provide written reviews of the interviewing techniques that had been used to seek information from the children. He appointed Professor Graham Davies of the University of Leicester and Dr Louise Sas, from London, Ontario, Canada.[49] In his evaluation, Graham Davies wrote he would not "pronounce on the reliability of individual children's accounts."[50] Professor of psychology at Auckland University, Michael Corballis, subsequently questioned the credentials of both these experts asking of Dr Sas, "Can she really be considered an expert?"[51]

Released in March 2001, Eichelbaum's inquiry concluded that the interviews were of good quality overall, and that though excessive questioning by some parents could have led to some contamination, this would not have been sufficient to affect the convictions.[52] Eichelbaum did not say how he determined the children's evidence to be reliable.

In December 2007 University of Otago psychologist Harlene Hayne conducted research which compared the standard of interviews conducted in the Ellis case with those of the Kelly Michaels case in the United States. Empirical analysis allowed Hayne to conclude that there was a "strong risk that the evidence of children who told of sexual abuse by Ellis was contaminated by the way the interviews were carried out," and that, contrary to Eichelbaum's conclusions, "the standard of the questions in Ellis was not substantially better than those in Michaels." Francis's articles and Hayne's research were cited in January 2008 by Ellis's counsel when making a renewed request that the Ministry of Justice establish a Royal Commission of Inquiry into the case,[53] but Associate Justice Minister Rick Barker rejected this approach in March 2008.[54] A further call for a Commission of Inquiry was made by former National MPs Katherine Rich and Don Brash and author Lynley Hood in November 2008,[55][56] and the new Minister of Justice Simon Power said that the government would reconsider the issue.[57] He later declined their request for an inquiry, on the grounds that Ellis still held the right of appeal to the Privy Council and an inquiry therefore could not achieve finality.[58]

In June 2003, two petitions called for a royal commission of inquiry into the case. The first, organised by then National Party leader Don Brash and MP Katherine Rich, had 140 highly prominent signatories. They included two former prime ministers (David Lange and Mike Moore), four former Cabinet ministers, 26 MPs, a retired High Court Judge (Laurence Greig), a retired District Court Judge, 12 law professors, 12 Queen's Counsel, former Auckland police chief Bryan Rowe, historian Michael King, psychology professors, professors from other disciplines, lawyers, child protection workers, psychologists, social workers, therapists and counsellors.[59]

In August 2005, Parliament's justice and electoral select committee reported on two petitions relating to the Ellis case. The committee had several concerns with the way the case was prosecuted. It recommended several changes, although it acknowledged that changes had already been made to the way that children were now interviewed. It also suggested that the testimony of expert prosecution witness Karen Zelas would not be permitted if it were proffered now. The committee noted that "The operation of the legal system in respect of this case did not inspire adequate public confidence in the operation of the legal system. A justice system should lead to certainty. In this case it seemed to increase the sense of uncertainty." However, the committee rejected the petitioners' call for a commission of inquiry, concluding that it was not practical to hold such an inquiry.[60]

In 2011, Ellis announced his intention to lodge a fourth petition to the Governor General.

On 25 July 2019, Ellis, aged 61, lodged an appeal to the Supreme Court.[61] However, by this time he had been diagnosed with terminal bladder cancer and was not expected to live.[62] In August, the Supreme Court said it would consider hearing Ellis' appeal even if he died before the hearing date, 11 November.[63] He died on 4 September 2019 before the hearing began.[64]

Prior to this hearing, which began on 14 November 2019, courts in Commonwealth countries, including New Zealand, have traditionally ruled that an individual's interest in any judicial hearing ends if they die. On Ellis' behalf, lawyer Robert Harrison said the appeal should proceed because it was an issue of public importance and addressed a systemic issue in the justice system.[65] Justice Joe Williams noted "this a very western idea that on demise you have nothing to protect" pointing out that tikanga Māori held that "an ancestor has even more reputation to protect". He adjourned the hearing for five weeks so that both sides could make new submissions addressing tikanga issues in the new year.[66]

On 1 September 2020 the Supreme Court granted leave for the appeal to be heard despite Ellis's death. The Court said the reasons for their decision would be released along with their ruling on the appeal. Defence lawyer Robert Harrison commented, "I think it's fantastic news...If the Supreme Court has gone down that particular path they're saying there's a value here that deserves to be respected and it means that there is valuing in continuing the appeal.".[67]

On 11 November 2020 the appeal was adjourned amid allegations of a historic sex offence against Peter Ellis from 1982. The complainant allegedly first approached the police in 1992 or 1993, though there is no record of this. She made a complaint in February 2019, but the Crown was not advised of it until September that year, by which time Ellis had died and could not respond to the new allegations. The complainant's claims were supported by her sister.[68]

The Crown took responsibility for the delays and admitted that more could have been done to satisfy the court of the veracity of the new evidence. The Crown also said the new evidence had been sworn to, while Ellis's defence lawyer Robert Harrison commented that the new evidence had no reliability and expressed concern about its credibility. The Court granted leave for the Crown to present its report on the new allegations on 27 November 2020.[68]

In 2001 Lynley Hood published a 616 page book about the case and the moral panic of sexual abuse within New Zealand at that time. In 2002 A City Possessed won the top prize for non-fiction and for readers' choice in the New Zealand Book Awards. As Hood tells it, fear and anxiety about ritual abuse began in childcare facilities overseas in the early 1980s. Given the number of sex abuse scenarios in Christchurch in the 1980s such as "the Glenelg Health Camp, Ward 24, and the Great Child Pornography fiascos – it was probable that some sort of panic would break out in Christchurch."[69] Hood argued that the professional careers of experts benefited from the case while more than 100 children were subjected to unpleasant, repetitive and psychologically dangerous procedures for no good reason.[24]

A former National Party leader, Don Brash, was drawn to the controversy after reading Hood’s book. He commented: “I was stunned at how compelling a case it made. The Peter Ellis case is a serious miscarriage of justice and I am utterly astonished [his conviction] hasn’t been overturned. It is implausible to believe four women and one man could do this in a busy creche.”[70] In 2006, Brash cited the case when supporting calls for an independent body investigating miscarriages of justice in New Zealand.[71] On 17 December 2014, Brash and author Lynley Hood again called for a review of the case by way of an independent inquiry led by an authority from outside New Zealand. The appeal was made to Amy Adams, the newly appointed Minister of Justice for the National Party-led government returned in the 2014 General Election.[72]

According to Greg Newbold, senior lecturer in sociology at the University of Canterbury, even cynical journalists like Frank Haden, David McLoughlin, Melanie Reid, George Balani, and Martin van Beynen – the only journalist to have sat right through the trial – agree that Ellis is not guilty. Newbold notes that "it was a politician who saved Arthur Allan Thomas, but the Ellis case is different from Thomas’s, because Ellis lacks government support." In 2000 (after Ellis' failed appeals) he wrote: "at the moment the judiciary is turning away from the plight of a man impugned by some of the most absurd testimony ever heard in a New Zealand court."[69]

In late 2007 and January 2008, three articles on the Ellis case were published in The New Zealand Law Journal. These included "New Evidence in the Peter Ellis Case"[73] by researcher Ross Francis. Francis concluded that despite two appeal hearings, three applications for a pardon, a ministerial inquiry, and a parliamentary inquiry, questions about the reliability of Ellis' convictions remain. He wrote: "Whilst it may appear that the case has been examined thoroughly, the facts show otherwise. The Court of Appeal did not review all the available evidence and, at the second hearing, failed to give any weight to the expert opinions."[74] The journal review prompted Sir Thomas Thorp to comment that the articles "must add to concerns expressed previously that that case may have gone awry".[75]